Faragher v. City of Boca Raton

At issue in Faragher v. City of Boca Raton (1998) was whether a public employer could be liable for sexual harassment committed by supervisory employees. The Court ruled that an employer could be liable in such circumstances but also outlined affirmative defenses that employers might make to such claims. Although Faragher did not take place in a school setting, the Supreme Court’s analysis should be useful for educators in the public sector, because it details the duties of those who serve in supervisory capacities in the face of complaints dealing with sexual harassment. Faragher underscores the necessity for employers, including universities and school boards, to have suitable sexual harassment policies in place. The failure of school, and other, employers to have such policies would generally deprive them of affirmative defenses to hostile work environment sex harassment claims.

Facts of the Case

As a college student, Beth Ann Faragher worked parttime and during the summers as a lifeguard for the City of Boca Raton, Florida, between 1985 and 1990. During that time frame, about 10% of the approximately 50 lifeguards were women. The two immediate supervisors of the lifeguards were men, who reportedly made offensive sexual remarks and lewd gestures to the women, touched them inappropriately, and asked them for sex. One of the two supervisors reportedly once said to Faragher, “Date me or clean toilets for a year.” Two years after resigning, Faragher filed suit under Title VII of the Civil Rights Act of 1964, Section 1983 of the Civil Rights Act of 1871, and Florida civil rights law, alleging that the two supervisors created a sexually hostile work environment and that, as agents for the city, made it liable for nominal damages, costs, and attorney fees.

A federal trial court held that because the conduct of the two supervisors was sufficiently discriminatory to create a hostile working environment, the city was liable for their acts of harassment. The trial court imputed liability on the city on the basis of three justifications: the city had official knowledge or constructive knowledge of the harassment; the supervisors were agents of the city, and traditional agency principles applied; and the immediate supervisor of the lifeguards’ supervisors knew of the harassment and had failed to act.

On further review, the Eleventh Circuit reversed in favor of the city. The court explained that employers can be indirectly liable for hostile environment sexual harassment by supervisors only if the harassment took place within the scope of their employment, if employers assigned performances of nondelegable duties to supervisors and employees were injured due to the supervisor’s failure to carry out those responsibilities, or if there was an agency relationship present that helped the supervisors’ abilities or opportunities to harass subordinates. Insofar as the court viewed the supervisors’ behaviors as outside the scope of their employment, it refused to impose liability on the city.

The Court’s Ruling

The Supreme Court agreed to hear an appeal in Faragher in order to address the legal standard for rendering employers liable for the discriminatory actions of supervisors against employees under Title VII. In an opinion authored by Justice David Souter, the Court acknowledged that there was a conflict between a traditional, mechanical view that harassing behavior by supervisors is always a “frolic” and outside the scope of employment, as compared to a more modern view that all supervisory behavior, including harassing behavior, is generally foreseeable, and that there are good policy reasons to assign the burden of improper supervisory behavior to employers as one of the costs of doing business. If this conflict is decided in favor of assigning vicarious liability to the employer for the misuse of supervisory authority, the Court found that these decisions must, in turn, be balanced by providing a means for employers to raise affirmative defense against liability.

In light of its analysis, the Supreme Court was of the opinion that employers can be subject to vicarious liability when supervisors create actionable hostile work environments. At the same time, the Court pointed out that employers may raise affirmative defenses to liability or damages. The Court observed that such affirmative defenses have two elements: (1) Employers must have exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and (2) victimized employees unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. The Court added that these affirmative defenses are unavailable when the behavior of supervisors ends in tangible employment actions such as demotions, discharges, or other adverse employment action.